Judges shouldn't be the star of the show during trial

August 10, 2018
By
Roman & Gaynor

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The trial of Paul Manafort, President Trump’s former campaign chair,
is chugging along in federal court near Washington, D.C. Manafort is accused
of various financial crimes such as bank and tax fraud.

Financial crime cases make for some pretty dry testimony. In trials of
this type, witnesses may pore over financial statements and loan papers
for days. To try and find something interesting to write about, journalists
covering the trial have focused on the judge, T.S. Ellis. Ellis has been
described as involved, colorful, and even as the star of the show. He
has drawn particular attention for his frequent clashes with lawyers over
the pace of the trial and the testimony being offered.

This is not good news. Generally, if a judge is the star of the show, something
is very wrong. Trial judges should not be the star of a trial any more
than referees should be the star of an NFL game. In general, judges are
not supposed to interject themselves into proceedings. They should not
take over the questioning or micro manage lawyers who are trying cases.
Their role, as Supreme Court Justice John Roberts famously said, is simply
to “call balls and strikes.”

As a lawyer, it’s hard not to feel sympathy for the legal teams involved
as they try to cope with Judge Ellis. Neither the prosecutors nor the
defense attorneys are amateurs; both sides have capable and experienced
courtroom lawyers. Presumably, neither side wants to waste time or cause
unnecessary problems. This suggests the problem may not be with the lawyers,
but the judge himself. It may be that Judge Ellis is just being too impatient
and combative. And while observers often think a judge is the smartest
lawyer in the courtroom, that is not always true.

Indeed, Judge Ellis actually ended up having to do a bit of a mea culpa
in front of the jury. First, he allowed an expert witness for the prosecution
to sit through the trial before testifying. This is not unusual. Expert
witnesses, unlike lay witnesses, are typically allowed to observe the
trial and consider the evidence they hear before taking the stand themselves.

Even so, Judge Ellis got mad at the prosecutors when they called the expert
witness who had been observing the trial. When prosecutors pointed out
that he’d given them permission to do things that way, he got even
more mad. In a particularly low moment, he warned prosecutors not to refer
to the transcript and point out what he’d already said.

The next day, Judge Ellis calmed down and rightly told the jury not to
hold his criticisms against the prosecutors. Even then, Judge Ellis could
only bring himself to issue this kinda-sorta half-apology: “You
may put that aside . . . I may well have been wrong.”

Trying cases is not easy. It takes a lot of self-control to keep your cool
during long days which fray your nerves. Judges who constantly intervene
and second guess the attorneys make the job that much harder. Lawyers
are sometimes required to push back, gently but firmly, to keep a judge
from derailing their case. A respectful tone and an unflappable demeanor
can help settle a judge down and put the attention back on the evidence.